R v Nuske[2024] QCA 28

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLLINS P:  The appellant was convicted after trial in the District Court before a jury of one count of fraud – dishonestly gained benefit where the value of the benefit was over $30,000 contrary to s 408C(1)(d) and (2)(d) of the Criminal Code (Qld).  The period during which the fraud was committed was particularised as between 31 May 2013 and 1 January 2017.
2. [2]
   The appellant appeals against the conviction on three grounds:

3. 1.
   The prosecutor’s conduct during the trial occasioned a miscarriage of justice, by:

3. a.
   denigrating the appellant’s case, the appellant’s trial counsel, and the appellant;

3. b.
   conveying to the jury his personal opinion of the case; and

3. c.
   making unfair submissions in his closing address which had not been put to the appellant, contrary to his duty to fairness (and the rule in Browne v Dunn).

3. 2.
   A miscarriage of justice occurred because the trial judge failed to direct the jury, in the context of evidence of financial transactions, that it was for the prosecution to prove the case against the appellant, and no adverse inference could be drawn against the appellant for her decision not to lead further financial evidence.

3. 3.
   A miscarriage of justice occurred because the learned trial judge did not adequately direct the jury as to how they could rely upon evidence sought to be used by the prosecution as admissions against interest.

3. [3]
   At the conclusion of the hearing of the appeal on 25 October 2023, the Court made the following orders:

1. Appeal allowed.
2. Conviction set aside.
3. New trial ordered.
4. Reasons to be published at a later date.

4. [4]
   These are the reasons for the making of those orders.

Background

5. [5]
   The appellant was employed as the accounts and business manager for a group of companies owned by Ms Banks and trading as the restaurant “Bistro C” on the Sunshine Coast (the operating companies).  The appellant had worked for Ms Banks for close to 20 years and by 2013 she was a close friend of Ms Banks and trusted by her.  She enjoyed unsupervised access to Ms Banks’ business and personal accounts and had been granted a power of attorney in respect of Ms Banks’ financial affairs and one of the executors named in Ms Banks’ 2011 will.  By a codicil to that will made in June 2015, the appellant was named with three others as the beneficiaries of the restaurant business, if none of Ms Banks’ children survived her for the period of 30 days after her death.  It was also common ground at the trial that Ms Banks was generous in the gifts she gave to long term, loyal staff members, although there was not agreement about the detail of those gifts.
6. [6]
   The prosecution case at trial was that there were four different means by which the appellant obtained the benefit:

Part A comprised any or all of 19 unauthorised payments from the accounts of the operating companies for payments to third parties for goods or services not received by the operating companies but instead received by the appellant, related parties or entities associated with the appellant or related parties that were set out in the table attached to the particulars and extracted from Annexure C-1 that was tendered as an exhibit in the trial.

Part B comprised any or all of 94 unauthorised payments from the accounts of the operating companies to the credit cards or accounts of the appellant, or related parties, or entities associated with the appellant or related parties – as set out in the table attached to the particulars and extracted from Annexure D-1 that was tendered as an exhibit in the trial.

Part C comprised wages paid to the appellant by herself from Ms Banks or the operating companies in excess of the salary and bonuses as agreed by Ms Banks or the operating companies.

Part D comprised Bistro C restaurant cash takings retained by the appellant without authorisation or consent.

7. [7]
   The prosecution relied at trial on the evidence of Ms Banks that she had never authorised the appellant to use funds from Bistro C to make the purchases alleged in Part A, to pay off her credit card (as alleged in Part B) or to retain cash takings from the restaurant as alleged in Part D.  Ms Banks’ evidence in chief was that the appellant only worked three days per week receiving a wage of $40 per hour up until mid 2015 and thereafter $45 per hour which meant any salary the appellant paid to herself over $50,360 per year was alleged to be excessive.  It was conceded by Ms Banks, however, that at times (such as towards the end of the financial year) the appellant would have worked more than three days per week and the agreement was for the appellant to pay herself for the days she did work.  In fact, the prosecutor conceded in his address to the jury that the prosecution’s case was “less strong” on Part C than for the other Parts, as the prosecution had difficulties in proving beyond reasonable doubt in relation to Part C that the appellant paid herself excessive wages dishonestly.
8. [8]
   The appellant’s case at trial was that each of the impugned transactions was authorised.  The appellant gave evidence of arrangements she had with Ms Banks which she understood authorised her to make the transfers particularised against her.  The appellant said they had a conversation in 2007 when Ms Banks told the appellant to continue treating the business as her own, as it was going to end up being hers one day anyway and that she could supplement her wage by paying certain expenses which was consistent with the benefits the chef and floor manager took as a supplement to their salaries.  There was a further conversation between them in 2015 about the appellant not having been paid maternity and long service leave and she said that Ms Banks agreed to pay that out and that she also authorised a pay rise of $300 cash per week.
9. [9]
   The appellant did not contest the transactions in Parts A and B but asserted they were authorised by Ms Banks.  The appellant contested the forensic accountant’s calculations in Part C on the basis that the forensic accountant’s assumptions about the appellant’s salary entitlements were wrong.  Part D was challenged on the basis that the forensic accountant had failed to account for other cash sources, namely unbanked bonuses the appellant had stored in a gun-safe from as far back as 1998, cash received by her husband for his work and other cash income, such as from the sale of the “tinny”.  A significant part of the appellant’s case at trial was that Ms Banks, and other witnesses called for the prosecution who had known Ms Banks for many years, were lying about the extent of the appellant’s entitlements, as they were covering up tax fraud.
10. [10]
    Apart from Ms Banks, one of her daughters (the daughter) and the forensic accountant, the prosecution called as witnesses Ms Banks’ accountant (Ms Clarke) and solicitor (Mr Power), a former employee in the accounts area who worked with the appellant (the co-employee), and the employee who succeeded the appellant as bookkeeper (Ms Scotney).
11. [11]
    It was the element of dishonesty that was in issue at the trial and, in particular, whether Ms Banks had authorised the relevant payments to or for the benefit of the appellant in Parts A to D.  The credibility of Ms Banks and the other prosecution witnesses whom the appellant asserted were involved in tax fraud was in issue, as was the credibility of the appellant.  The jury was instructed appropriately by the trial judge that they could not bring in a verdict of guilty unless they were satisfied beyond reasonable doubt that Ms Banks did not authorise or consent to the appellant’s paying herself and/or taking or retaining the respective benefits that were identified in the prosecution case and that the appellant knew there had been no such authorisation.

Whether the prosecutor’s conduct occasioned a miscarriage of justice

12. [12]
    It was recognised in Whitehorn v The Queen (1983) 152 CLR 657 at 663-664 that there will be instances where the failure of a prosecuting counsel in a criminal trial to act with fairness and detachment “may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial”.  Similar statements are found in R v MDQ [2023] QCA 149 at [32]-[34], R v Gathercole [2016] QCA 336 at [49]-[56] and R v Smith (2007) 179 A Crim R 453 at [38].  See also Libke v The Queen (2007) 230 CLR 559 at [71]-[72] (per Hayne J) on the standard expected of a prosecutor in a criminal trial.
13. [13]
    The first category of the prosecutor’s submissions and conduct that are relied on in relation to the first ground of appeal comprises inappropriate comments which the appellant asserts are likely to have discouraged the jury from trusting the defence case at trial.  The following extracts from the prosecutor’s address to the jury are set out in the appellant’s submissions on the appeal with the offending submissions in bold:

3. (a)
   I’m going to address you on the evidence to the elements of the offence, to show that you’d be satisfied of those elements beyond reasonable doubt; not appeal to emotion, no[r] to slurs or insinuation, which appear to be the stock in trade of the defendant, not defence counsel’s favourite metaphor of “thrown under the bus”. What was it, again? There’s the bus, there’s [the appellant], thrown under the bus, and every witness except [the forensic accountant] has her fingerprints on [the appellant]. That’s not evidence; it’s not even argument, and thrown under the bus, what does that even mean here.

3. (b)
   Now, there was the somewhat extraordinary argument, you might recall, by defence counsel, look at how transparent they are.

3. (c)
   It’s something of a sl[e]ight of hand on her and her defence’s part to say it’s transparent when you have the tables and annexures and even the demonstration by [the forensic accountant].

3. (d)
   Also, there’s the motive, dealing with that bizarre argument by defence counsel: where is the motive? There it is; almost $70,000, over $381,000.

3. (e)
   And as I say, I refer to it [the defendant’s evidence] being like feeling jedi mind tricked. It – to a point, it felt like a jedi mind trick.

14. [14]
    The appellant also relied on the prosecutor’s repeated comments about the jury’s own gullibility, if they were to believe the appellant’s evidence, and gave the following examples with the offending submissions in bold:

3. (f)
   If you believe or have a reasonable doubt that [the appellant] just happened to be just storing up that amount of cash in the gun safe in the decade or so before the 1^st of June 2013, not using it, not spending it or depositing or divesting it – investing it, and then just happened to start suddenly depositing it or using it for those two documented cash purchases – sorry, depositing it or using it for those two documented cash purchased in that period, from the 1^st of June 2013 to the 2^nd of September 2016, then I’ve got a bridge to sell you, and it’s for a payment in lieu of unquantified food and beverages.

3. (g)
   But as I said earlier in your opening, if you believe that account, and especially if you believe that account of accrued cash bonuses like her approved leave, like the various other ways her evidence has changed, then I’ve got a bridge to sell you.

15. [15]
    There were also submissions made by the prosecutor in his address to the jury which the appellant asserts “mocked or belittled the evidence and/or character” of the appellant:

3. (h)
   You’ll probably clearly remember this payslip. The [appellant] triumphantly produced her final payslip and how it was repeated by defence counsel in argument to you, even to the effect, well to the effect that accrued leave, 283‑odd hours, said the [appellant] – triumphantly producing it and, for that matter, unc – its concerning we didn’t have that, a frequent little jab back she would often like to get in except, and you’ll remember defence counsel’s argument on that point – except she’s the one who inputs her leave.

3. (i)
   But imagine this: imagine if [the co-employee] or [Ms] Clarke actually picked out a transaction and went to ask her about it, given how she presented to you. Imagine them giving her a question… and trying to get a straight answer out of her. She’d be pretty argumentative and self-righteous about it too. It’d be like being jedi mind-tricked.

3. (j)
   Like everything else, if she asserted it strongly enough and – and perhaps smugly enough, you aren’t taking those fees into consideration.

16. [16]
    In this first category of denigration of the appellant, the appellant also relies on aspects of the prosecutor’s cross-examination of the appellant in which it was asserted:

3. (k)
   the appellant had her trial counsel tender Exhibit 2 (a series of five Facebook messages) into evidence (which included the text message which showed [the daughter] to be receiving payments ‘not-on-the-books’) as something to “slur [Ms Banks] with”; and

3. (l)
   the appellant “didn’t hesitate to have [her] counsel throw out wild insinuations” regarding her trial counsel’s cross-examination of [the co‑employee] as to her drug usage; and

3. (m)
   it reflected poorly on her for defence counsel to cross-examine the prosecution witnesses on their suggestions that her lifestyle was extravagant: “And most relevantly, perhaps, you sat there while your counsel seems to suggest...”.

17. [17]
    The second aspect of the first ground of appeal is the assertion that the prosecutor conveyed his personal opinion to the jury.  The following example was given of a sarcastic comment made by the prosecutor:

3. (n)
   I do like the way that the appellant’s evidence devolved from what she told [Ms] Banks and [the co-employee] in their evidence about shares or silver, and went from making money on silver to a tinny ...

18. [18]
    The other example given in the appellant’s submissions of the prosecutor’s personal opinion being evident to the courtroom:

3. (o)
   “HIS HONOUR:  [Prosecutor], you’re just going to have to deal with it.

19. [19]
    The third aspect of ground 1 is based on the prosecutor’s drawing to the jury’s attention that between 15 and 26 May 2016 the appellant had been in Fiji on leave but table LMD-13 of the forensic accountant’s report showed that the payslip details for that period were:

“Pay described as normal salary

No reference to annual leave”

20. [20]
    The prosecutor then submitted to the jury (without having cross-examined the appellant on this specific topic) that the effect of the appellant’s being paid normal salary when she was on leave was that she accrued leave for that period when she was out of the country which became “a slush fund” which she then had paid out to her.
21. [21]
    It was a relatively lengthy trial with the evidence concluding on day 8 followed by the appellant’s trial counsel’s address to the jury.  The prosecutor addressed the jury and the trial judge summed up on day 9 with the jury commencing their deliberations and returning their verdict of guilty on the same day.  It is necessary to consider each of the instances of inappropriate statements or conduct in the context in which each was made and in the context of the whole trial.  Each of the statements or other conduct identified by the appellant will be referred to by the numbered paragraph attached to it above.
22. [22]
    In order to illustrate the appellant’s case at trial that Ms Banks and other witnesses were lying about the extent of the appellant’s entitlements, as they were covering up tax fraud, the appellant’s trial counsel used the analogy of the appellant being “thrown under the bus” in the sense of being made to suffer in order to save Ms Banks and those associated with her.  The appellant’s counsel addressed the jury in these terms:

“[The appellant] was thrown under the bus. I agree, ladies and gentlemen, that is not a legal term or a phrase, but I ask you to accept that is an accurate description of what occurred here. If I described the scene of what happened, we’d have the bus. We’d have [the appellant] under the bus. A number of fingerprints would be located on [the appellant]. Those fingerprints would belong to [Ms Banks and four other prosecution witnesses]. Five sets of fingerprints, because they all played a part in throwing [the appellant] under the bus. Now, that may be a difficult concept for some of you to accept. It may not. You might be thinking, ‘Yeah, I can see how that happened.’ But if there were those of you that are having some difficulty in grasping this concept, I ask you to keep an open mind as I take you through these next steps.”

23. [23]
    Statement (a) was made by the prosecutor in the opening few lines of his address to the jury which immediately followed the appellant’s trial counsel’s address where the metaphor of “thrown under the bus” had been used frequently for a legitimate forensic purpose.  It was an unfair attack by the prosecutor to characterise that analogy as not even an argument, when the analogy was apt for the appellant’s case at trial.
24. [24]
    Statement (b) is merely the prosecutor’s challenge to one small aspect of the appellant’s trial counsel’s argument and does not fall into the category of an inappropriate comment.  The same point was then made again by the prosecutor in statement (c) which uses a much less complimentary way of describing the argument as “sl[e]ight of hand on her and the defence’s part” which suggests deception not just on the part of the appellant but also on her counsel.  This is significant and may have affected the jury’s assessment of the appellant’s account given at the trial.
25. [25]
    It was a poor choice of adjective by the prosecutor to describe the appellant’s trial counsel’s argument on motive as “bizarre” in statement (d) but that should not be characterised as an inappropriate comment.
26. [26]
    Of significant concern is the description by the prosecutor in statement (e) of the appellant’s evidence being like a “jedi mind trick”.  The prosecutor was making the valid submission to the jury that they would have observed when the appellant gave evidence “how she will assert something and continue to assert it to suit her purpose”.  The prosecutor then used the example of the appellant’s explanation in respect of the bookkeeping and consultancy fees relevant to Part C that she repeatedly asserted had not been taken into account by the forensic accountant and referred to “jedi mind trick” in the following passage which also incorporates statement (j):

“… I refer to it being like feeling jedi mind tricked. It – to a point, it felt like a jedi mind trick. You’re not taking – not the droids you’re looking for, not taking those into consideration. Like everything else, if she asserted it strongly enough and – and perhaps smugly enough, you aren’t taking those fees into consideration.”

27. [27]
    The use of the analogy “jedi mind trick” was completely inappropriate.  It carries with it the suggestion that the appellant was unfairly trying to influence the jury by the repetition of her explanation, when the explanation was her response to the questions being asked of her.  The use of the description “jedi mind trick” cannot be excused as an advocate’s flourish as it was an unfair attack on the appellant’s credibility.  To the extent that the last sentence of the above passage constitutes statement (j) relied on by the appellant as an example of the prosecutor’s mocking or belittling the evidence of the appellant, the description of the appellant as giving those repeated explanations “smugly” is no more than the prosecutor’s description to the jury of how he submitted they would perceive the manner in which the appellant gave her evidence.
28. [28]
    Statement (f) incorporates the use of the metaphor about selling a bridge to the jury by the prosecutor to the effect that the jury would be extremely gullible if they accepted or had a reasonable doubt about the appellant’s evidence that she had been storing up cash in the gun safe in the decade before 1 June 2013 and then started using it for the two documented cash purchases in the period between 1 June 2013 and 2 September 2016.  It was unacceptable for the prosecutor to suggest that the jury could accept or have a reasonable doubt about the appellant’s evidence on this topic only if they were very gullible.  This was the use by the prosecutor of an analogy that was unnecessary that may have adversely affected the jury’s assessment of the appellant’s account.
29. [29]
    Statement (g) repeated the bridge metaphor at the conclusion of the prosecutor’s address, when he returned again to the appellant’s evidence of accumulating cash, and reinforced his unacceptable comment that may have affected the jury’s proper assessment of the appellant’s evidence.
30. [30]
    At the commencement of day 7 of the trial, when the appellant was still giving evidence, the jury provided a note (MFI “D”) in which they expressed their feeling that there was evidence which should be available that had not been presented and inquired whether they could question it or request it, especially if it could resolve an important point of dispute/confusion.  The appellant’s counsel was given the opportunity to consider how he wished to respond to the jury’s inquiry.  As a result, the appellant’s counsel informed the trial judge that he had been provided with a copy of a payslip for the appellant which included material that was not on the payslip that had been tendered the previous day and that the appellant’s counsel proposed to show the payslip to the appellant in re-examination.  When the jury returned to the courtroom, the trial judge advised them that they would have to wait and see what further evidence there was in the case and that:

“As it turns out, [the appellant’s counsel] has indicated that there is a particular document that he wishes to have his client identify; something that was discussed in evidence yesterday, and it is agreed that that should happen now so that [the prosecutor] is then in a position where he can ask any questions that he wishes about that.”

31. [31]
    The jury was obviously troubled about aspects of the evidence.  There was a further note from the jury (MFI “E”) around the same time that identified three pieces of evidence on which the jury wished to “get clarity”, including the appellant’s invoices for bookkeeping fees.
32. [32]
    The appellant was able to produce her final payslip that the trial judge foreshadowed to the jury may be responsive to the inquiry.  The use of the description by the prosecutor in statement (h) that the appellant “triumphantly produced her final payslip” does not describe how the appellant’s counsel put the payslip to the appellant, completely overstated the circumstances in which the payslip was produced into evidence, and amounted to the prosecutor’s mocking or belittling the appellant’s evidence.
33. [33]
    Statement (i) was made in respect of hypothetical circumstances which the jury was asked to “imagine” if the co-employee or Ms Clarke had selected a transaction and asked the appellant about it.  On the basis of the manner in which the appellant responded to questions in cross-examination, the prosecutor was not being unreasonable in describing that the appellant would be “pretty argumentative and self-righteous”.  The prosecutor going on to describe the appellant’s responses as “like being jedi mind-tricked” was, however, completely unnecessary and repeated the implicit submission that had already been made that the appellant was unfairly trying to influence the jury.
34. [34]
    The use of “slur” in statement (k) reflects a poor choice of language by the prosecutor but is not inappropriate conduct of the prosecutor.
35. [35]
    In making statements (l) and (m) while cross-examining the appellant, the prosecutor assumed that the appellant’s counsel’s strategic choices in cross-examination were based on the appellant’s instructions.  The caution that should be exercised by a prosecutor before making submissions based on such an assumption emphasised in the majority judgment of Kiefel CJ and Keane and Gleeson JJ in Hofer v The Queen (2021) 274 CLR 351 at [34] was also applicable in the context of the cross-examination that was the subject of statements (l) and (m).  By themselves, statements (l) and (m) could not have constituted a miscarriage of justice, but they should be considered in conjunction with the other aspects of the prosecutor’s conduct in this trial that fell short of the standard to be expected of a prosecutor.
36. [36]
    In respect of the two examples of the trial prosecutor’s conveying his personal opinion of the appellant to the jury that comprise the second aspect of ground 1 set out above, the observation of the respondent that both instances, while “regrettable”, could not have influenced the jury in any particular way is apt.  The first example was immaterial.  A prosecutor should not display his personal opinion about the evidence of a witness when it is the jury’s role to assess the credibility and reliability of the evidence given by each witness.  In a lengthy trial, one instance of the rolling of the eyes by the prosecutor whilst the appellant was giving evidence that was immediately admonished by the trial judge could not have influenced the jury against the appellant.
37. [37]
    The third aspect of ground 1, however, is significant.  In respect of Part C, the forensic accountant had prepared table LMD-13 that was an analysis of leave.  The first part of the table listed three trips where Border Force records had shown that the appellant was out of the country and the forensic accountant had reviewed the payslips for those periods and identified that the pay was identified as normal salary with no reference to annual leave.  The longest trip between 15 and 26 May 2016 was to Fiji.  Although the prosecutor cross-examined the appellant on the second part of the table that summarised payslips with leave, no questions were asked of the appellant about the first part of the table.  One aspect of the cross-examination put to the appellant was that she was not entitled to annual leave, as she was a casual employee to which she responded that she was a full-time employee from when she took over the position of business manager.  The appellant also confirmed that she provided the payroll information to the independent payroll company and that she therefore had control of what she was paid.  The appellant also explained that sometimes she was not on holiday necessarily when leave that was accrued was paid out.
38. [38]
    It was apparent from the way in which the prosecutor introduced his submission on annual leave that it was only during his preparation for his address to the jury that he realised the significance of table LMD-13.  He then made the following submission about the effect of the appellant’s not recording that she had taken leave when the Border Force records showed she was out of the country:

“So it’s easy to accrue leave when you don’t record yourself as taking it when you do, and that makes the accrued pay – accrued leave in this payslip effectively worthless, as I said, because it comes from her records entering it, when she’s accruing leave and when she’s taking it. She doesn’t record herself taking leave. Here we have a fortunate case, you know, where we actually have something, which we normally wouldn’t have, perhaps, where we can check against movement records from an objective external source, which matches up to what we know of her leave. So here we can check what she tells us about accrued leave, which would follow from when she’s accruing it and when she’s taking it, with a reliable truthful external and objective source, and what does it tell us about taking anything. She tells you about her accrued leave, where you don’t have such a source to check it against, where we can’t check these other – other leave and when she took leave and when she didn’t.

You simply can’t accept what she’s telling you as true or accurate. What did it tell you about any time she’s asserted she’s accrued leave, and we can’t check it against some external source, so it is true and accurate, such as her accrued maternity leave or accrued long-service leave, or the fact of any leave at all. What does it tell you about her simply accruing leave – of course, she’s not recording it when she takes it, so it just becomes a slush fund. She can pay herself out whenever and wherever she wants. What does it tell you about her accruing anything, when we only have her saying it and can’t check it against any truthful and reliable external source, like all those multiple cash bonuses through to 2013.”

39. [39]
    The prosecutor was therefore submitting to the jury that the effect of the appellant’s having been paid a normal salary when she was on leave was that she accrued leave for that period which became “a slush fund” but the appellant was not cross-examined on that contention.  This submission based on the Border Force records and corresponding payslips in conjunction with the evidence the appellant provided the information for her payslips was used by the prosecutor to make a general allegation that the inconsistency between the Border Force records and the payslips for those three trips could be used by the jury to conclude that they could not accept that what she was telling them was true or accurate.  In other words, a submission on the appellant’s general credibility was made from the inconsistency between two sets of documents, when the appellant was not cross-examined on that inconsistency.
40. [40]
    The rule in Browne v Dunn is to ensure fairness in the conduct of the trial: R v Lewington [2021] QCA 258 at [61]-[62].  It was breached by the prosecutor’s submission based on the first part of table LMD-13 which was unfair to the appellant when she was not cross-examined on the content of the first part of the table and not given an opportunity to provide an explanation for the inconsistency between two sets of documents and when that inconsistency was used to make a general attack on the appellant’s credibility.
41. [41]
    In the context of a lengthy trial, an occasional slip up by a prosecutor will not result in a miscarriage of justice.  The problem in this trial is that the aggregation of statements (a), (c), (e), (f), (g), (h), (i) (to the extent that the prosecutor used “jedi mind-tricked” in describing the appellant’s responses in statement (i)), (l) and (m) in conjunction with the unfair submissions that are the third aspect of ground 1 meant that the jury’s assessment of the appellant’s credibility may have been affected and the appellant had therefore been denied her fundamental right to a fair trial.  That constituted a miscarriage of justice.
42. [42]
    Ms Kelso of counsel (who was not the prosecutor at the trial) on behalf of the respondent conceded that this was not an appropriate case for the application of the proviso, if the Court were satisfied that the aggregation of the prosecutor’s unacceptable statements may have affected the jury’s assessment of the credibility of the appellant (which was the case).
43. [43]
    The appellant succeeded in showing there was a miscarriage of justice based on ground 1 and, as it was not an appropriate case for the application of the proviso, there must be a new trial.

Grounds 2 and 3

44. [44]
    In view of the appellant’s success on ground 1, some brief observations only will be made on grounds 2 and 3.
45. [45]
    There were two aspects to ground 2.  It emerged during the forensic accountant’s evidence and the cross-examination of the appellant that the appellant’s lawyers had engaged a forensic accountant who prepared a report to which the prosecution’s forensic accountant had prepared a reply.  The appellant did not call her forensic accountant at the trial.  The appellant submitted that these references to the forensic accountant had the potential to prejudice her as there was the risk that the jury might speculate as to why the forensic accountant engaged by her lawyers was not called to give evidence at the trial and there was also the risk that the jury would reason that the appellant did not call her forensic accountant as the evidence would have been adverse to her.  The appellant therefore submitted that the jury should have been directed by the trial judge not to speculate about why the forensic accountant engaged by the appellant was not called by her or draw any inferences adverse to the appellant from her decision not to call her forensic accountant.
46. [46]
    The second aspect to ground 2 arose out of the question of whether invoices existed for the appellant’s bookkeeping fees and whose responsibility it was to produce them, if they did.  When the appellant was being cross-examined by the prosecutor at the trial, she explained that her salary was split between salary for 38 hours of work per week and bookkeeping fees for the hours she worked each week over 38 hours.  She also explained that she had MYOB records at the time the invoices were sent and that she no longer had access to MYOB.  The appellant made the point that she believed that another entity (associated with her) received the bookkeeping or consultancy fees due to her and that she did not consider that the prosecution’s forensic accountant had regard to those consultancy fees.  The appellant said there would have been invoices for those bookkeeping and consultancy fees and that she would need to look at whether they were declared in tax returns (other than her personal tax return).  In response to a question from the trial judge, the appellant said she did not mind if she had the opportunity to look into that further.  That issue was not addressed further in the appellant’s evidence.  The possibility of the existence of invoices for bookkeeping fees appeared, in part, to have prompted jury notes MFI “D” and “E” set out above.
47. [47]
    The prosecutor in his closing address to the jury reminded them that the prosecution’s forensic accountant had given evidence that she could not locate any invoices for bookkeeping or consultancy fees or evidence that they had been returned as income (apart from for June 2013) and he then stated:

“And in terms of tax, of course, there’s two people involved in an invoice: there is a business receiving it or the person receiving it, in this case, the operating companies, in theory, but there’s also the invoice issue – the person issuing it, which in this case would have been [the appellant], or the entity connected – or especially an entity connected with her and if it was – that was its purpose, to bookkeeping consultancy fees, it would have had – had issued invoices and retained – you’d expect, in the ordinary course of events, and had it for its tax but of course, there’s no – no such fees in the tax returns.”

48. [48]
    The source documents for the analyses undertaken by the prosecution’s forensic accountant were tendered as evidence in the trial (exhibit 6) with the index to those documents being exhibit 6A and included Australian Taxation Office records of the appellant and her related entities.  The annexures to the report that the forensic accountant had prepared were tendered as evidence in the trial (exhibit 16).  Annexure M was the tax return summary for the appellant and related parties for tax years ending 30 June 2013 to 30 June 2017.  The prosecutor’s submission was a reference to the fact that there was no evidence in those records of tax returns of the invoices for bookkeeping or consultancy fees and not that the appellant had failed to produce the invoices for bookkeeping or consultancy fees.
49. [49]
    The appellant submits that a specific direction should have been given by the trial judge that no adverse inference could be drawn against the appellant for her decision not to adduce further financial evidence.
50. [50]
    The jury was repeatedly told by the trial judge that they were to determine the facts of the case based on the evidence that was before them in the courtroom, about the onus of proof and that the appellant did not have to give evidence, call evidence or otherwise produce evidence.  In the circumstances of this lengthy trial in which the respective roles of the prosecution and defence were clearly identified for the jury, it was not necessary for there to be a specific direction in relation to the aspects of the evidence that are relied on for ground 2.
51. [51]
    With respect to ground 3, the prosecution case was that the appellant had made two admissions against interest.  The first one was an apology to Ms Banks in the conversation that took place in person on 2 September 2016 after suspicious transactions on her bank statements had been identified for her by the daughter and her bank manager.  In that conversation Ms Banks said that she accused the appellant of stealing from her and when she showed her the transactions that had been highlighted on the bank statements as proof, the appellant started crying and said “I’m sorry, Loz.  I’m sorry, Loz.  I didn’t mean to do it”.  Ms Banks conceded, in cross-examination, that she could not remember whether the appellant had apologised in that conversation but said there were texts where she did say she was sorry.  The second admission relied on by the prosecution at the trial was in a text exchange between the appellant and Ms Banks soon after 2 September 2016 that stated “I am so sorry Loz xx”.
52. [52]
    In summing up, the trial judge dealt at length with the evidence of Ms Banks and the appellant about the meeting on 2 September 2016 and drew to the jury’s attention that the allegation of stealing, as far as Ms Banks’ evidence was concerned at that stage, was in terms of transactions such as for the Sheraton Hotel, Bisque Furniture and school fees (all attributed as expenses of the appellant) which had been identified on the bank statements (and were the subject of Part A).  The appellant acknowledged on the appeal that the trial judge directed the jury on the fact there was a lack of clarity in the evidence of Ms Banks as to what the apologies were admissions to.  The trial judge gave an extensive direction on this aspect of the evidence and the difference between the prosecution case and the appellant’s case on the content of these conversations.  It was submitted that the trial judge should have clarified that any apology was inconsistent with the appellant’s case that she had the authority to make the transactions in Part A and that separate considerations arose with respect to Parts B to D.  That was in substance what the trial judge did in this part of the summing up.  There was no inadequacy in the directions given on this aspect.
53. [53]
    BODDICE JA:  I have read the reasons for judgment of Mullins P.
54. [54]
    Subject to one aspect, those reasons accord with my reasons for joining in the orders made on 25 October 2023.
55. [55]
    I would also have allowed the appeal on the basis that in the particular circumstances of this trial, a miscarriage of justice did arise by reason of the trial judge’s failure to give a specific direction that no adverse inference could be drawn against the appellant, for her decision not to adduce further financial evidence.
56. [56]
    Absent the prosecutor’s inappropriate conduct when addressing the jury, I would agree with Mullins P that such a specific direction would not have been required, having regard to the trial judge’s repeated directions that the jury determine the facts based on the evidence before them in the court room, and about the onus of proof, and that there is no obligation on the appellant to give call or otherwise produce evidence.
57. [57]
    However, with the consequence of the prosecutor’s address being that the jury’s assessment of the appellant’s credibility may have been affected, the fact that the prosecutor relied on the non-location of any invoices for bookkeeping or consultancy fees, assumed a particular significance.  That significance was exacerbated by reason of the fact that in the course of the appellant’s evidence, in which she had specifically said there would have been invoices for those bookkeeping and consultancy fees, the appellant had expressly said that she did not mind if she had the opportunity to look further into it.
58. [58]
    Against that background, there was a risk the jury would infer that the appellant had been given that opportunity but could produce no invoices and misuse the prosecutor’s reliance on their non-location, adversely to the appellant.
59. [59]
    That circumstance required the trial judge to specifically direct the jury that no adverse inference could be drawn against the appellant, by reason of the fact that she had not adduced further financial information.
60. [60]
    MARTIN SJA:  I have had the advantage of reading the reasons for judgment of Mullins P.
61. [61]
    Those reasons accord with my reasons for joining in the orders made on 25 October 2023.